Kenya Union of Commercial Food and Allied Workers v Woolmatt Limited (Employment and Labour Relations Cause E033 of 2023) [2023] KEELRC 3375 (KLR)
The bottom line
#Kenyan workers who benefit from a union-negotiated CBA must pay agency fees even if they quit the union, and employers must start deducting within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the gazetted Legal Notice No. 112 obliges the respondent to deduct agency fees from non-member unionisable employees despite their withdrawal of union membership
Yes - the applicant's request was granted and gazetted; section 49 obliges deduction from non-members benefitting from the CBA, and the respondent was to commence within 30 days of receiving the notice.
The court examined section 49 of the Labour Relations Act which permits a union with a registered CBA to request the Minister to order deduction of agency fees from unionisable employees covered by the agreement who are not members. The applicant made such a request and the Cabinet Secretary granted it via Legal Notice No. 112. Under section 49(3), the employer must commence deduction within thirty days of receiving the Minister's notice. Employee withdrawal of membership does not defeat the obligation, since section 49(5) makes even resigning members immediately liable to agency fee deduction. The court found the application merited at the interlocutory stage.
Whether the employees' withdrawal of membership and formation of a welfare association defeats the agency fee deduction
No - the court did not accept this as a ground to withhold compliance; benefit from the CBA is what triggers agency fees.
The respondent argued the employees withdrew membership en masse and formed an Employee Welfare Association, so deduction would be punitive and amount to unfair labour practice infringing article 36(2) rights. The court held that agency fees do not require union membership; entitlement rests on benefit from the negotiated CBA terms. Notably the court did not expressly resolve the claim that employees no longer benefit from the expired CBA, nor the pending application before the National Labour Board to revoke the recognition agreement, instead directing interim compliance pending full hearing.
Legal principles established
#- Unionisable employees need not be members of a trade union to be obligated to pay agency fees so long as they benefit from a CBA negotiated by the union; the employer must commence deduction within 30 days of receiving the Minister's notice under section 49(3).
Court orders
#- 1.Interim orders directing the respondent to commence deduction and remittance of agency fees by the respondent for the unionisable employees benefiting from the CBA negotiated, pending the hearing and determination of the claim
- 2.The respondent directed to comply with Legal Notice No. 112 issued on May 26, 2022 by the Cabinet Secretary for Labour
- 3.Costs in the cause
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act, 2016; section 49 of the Labour Relations Act, 2007; rule 17 of the Employment & Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial Food and Allied Workers v Woolmatt Limited (Employment and Labour Relations Cause E033 of 2023) [2023] KEELRC 3375 (KLR)", Case Analysis (2023). Notice of Motion dated July 18, 2023 (referencing Nakuru ELRC Cause No. E008 of 2020 as the related CBA review cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3375/eng@2023-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.